United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable Bruce G. Macdonald, United States Magistrate Judge.
pending before the Court is Defendant Janett Lynn
Anderson's Motion to Suppress Stop on Fourth Amendment
Grounds (Doc. 41). The Government has filed its response.
Govt's Response to Def's Mot. to Suppress Stop on
Fourth Amendment Grounds (Doc. 49). No reply was filed.
Defendant is charged with two (2) counts of transportation of
illegal aliens for profit and one (1) count of conspiracy to
transport illegal aliens for profit, all in violation of
Title 8, United States Code, Section 1324. Indictment (Doc.
15) at 1-2. Defendant Janett Lynn Anderson seeks suppression
of all evidence obtained as a result of an allegedly faulty
traffic stop. See Def's Mot. to Suppress Stop on
Fourth Amendment Grounds (Doc. 41).
to LRCrim. 5.1, this matter came before Magistrate Judge
Macdonald for an evidentiary hearing and a report and
recommendation. On August 7, 2017, an evidentiary hearing was
held before Magistrate Judge Macdonald regarding the motion.
Minute Entry 8/7/2017 (Doc. 52). On August 18, 2017, the
final transcripts were received and this matter became ripe
for adjudication. The Magistrate Judge recommends that the
District Court, after its independent review, deny
December 10, 2016, Arizona Department of Public Safety
("DPS") Officer Rene Algara was working a late
shift. Hr'g Tr. 8/7/2017 (Doc. 67) at 6:25-7:13. Officer
Algara has been employed with DPS for nearly two (2) years.
Id. at 5:20-6:8. His current assignment is as a
state trooper assigned to the Bisbee and Douglas area-from
the New Mexico state line to the east to the checkpoint past
Tombstone along Highway 80 and from the checkpoint past
Elfrida almost to Palominas on State Route 92. Id.
at 6:9-21. Prior to joining DPS, Officer Algara was a City of
Bisbee police officer. Id. at 5:24-6:8.
approximately 7:27 p.m. on December 10, 2017, Officer Algara
was patrolling State Route 80 in the Bisbee area. Hr'g
Tr. 8/7/2017 (Doc. 67) at 8:22-25, 17:19-21. Officer Algara
was parked, facing westbound, monitoring traffic between
mileposts 343 and 342. Id. at 9:4-21. Officer Algara
acknowledged that it was dark at that time of evening.
Id. at 9:1-3, 17:22-24. Officer Algara testified
that he observed a white Honda Civic at Milepost 343 and
pointed his LIDAR laser gun at the vehicle to obtain its
speed. Id. at 12:22-13:6, 15:2-4. Officer Algara
further testified that the vehicle was traveling 41 miles per
hour in a 30 mile per hour zone. Id. at 12:22-13:6,
15:5-9, 15:24-16:3, 19:22-20:6. Officer Algara also testified
that his report mistakenly states that it was a 35 mile per
hour posted speed limit instead of the actual 30 mile per
hour limit. Id. at 15:10-23.
Algara testified that as a DPS officer he has been trained to
visually estimate how fast a vehicle is traveling, as well as
being certified in the use of LIDAR and radar. Hr'g Tr.
8/7/2017 (Doc. 67) 13:7-13, 14:2-17. Officer Algara described
the use of the LIDAR, and explained that you can target a
specific vehicle to obtain the speed of that vehicle, even if
there are multiple cars present. Id. at 13:14-14:1,
Algara testified that he pulled out behind the white Honda
Civic, followed for approximately one mile, turned on his
lights and executed the stop. Hr'g Tr. 8/7/2017 (Doc. 67)
at 8:2-21, 16:4-8, 20:18-25. Officer Algara further testified
that Defendant's driving in excess of the posted speed
limit was his sole reason for stopping her. Id. at
22:3-5. Officer Algara made contact with the female driver of
the vehicle, who was identified as Janett Lynn Anderson.
seeks suppression in this case, because "[t]here will be
no evidence whatsoever that Ms. Anderson driving at 41 mph at
7:27 p.m. was 'unreasonable' and imprudent 'under
the circumstances, conditions and actual and potential
hazards then existing.'" Def.'s Mot. to Suppress
(Doc. 41) at 4. Defendant further argues that "[t]he
fact that many law enforcement officers in Arizona have the
mistaken belief that driving one or two mph above or below
the posted limits gives them the right to pull over any
motorist does not excuse the fourth amendment violation
Fourth Amendment-In general
Fourth Amendment prohibits 'unreasonable searches and
seizures' by the Government, and its protections extend
to brief investigatory stops of persons or vehicles that fall
short of traditional arrest." United States v.
Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750, 151
L.Ed.2d 740 (2002) (citing Terry v. Ohio, 392 U.S.
1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States
v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d
621 (1981)). For the police to conduct a valid stop, they
must "have a reasonable suspicion supported by
articulable facts that criminal activity may be afoot."
United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct.
1581, 1585, 104 L.Ed.2d 1 (1989) (internal quotes and
citation omitted). "[T]he level of suspicion required
for a Terry stop[, however, ] is obviously less
demanding than that for probable cause." Id. at
8, 109 S.Ct. at 1585 (internal citations omitted).
suspicion is defined as 'a particularized and objective
basis for suspecting the particular person stopped of
criminal activity.'" Id. (quoting
United States v. Cotterman,709 F.3d 952, 968 (9th
Cir. 2013) (en banc)). "The reasonable-suspicion
standard is not a particularly high threshold to reach."
Valdes-Vega, 738 F.3d at 1078. Furthermore, although
"a mere hunch is insufficient to justify a stop, the
likelihood of criminal activity need not rise to the level
required for probable cause, and it falls considerably short
of satisfying a preponderance ...